The initial onus of proving the due execution of a will is on the propounder, and in the absence of suspicious circumstances, the execution of the will thereof, the testamentary capacity and the signature or the thumb impression of the testator or testatrix is required by law is sufficient to discharge the onus.

R. BHATTACHARYYA, J.

( 1 ) THIS appeal is directed against the judgment and order dated 11th of August, 1983, passed by her Lordship, the Hon'ble Mrs. Justice Padma Khastgir in testamentary Suit No. 20 of 1981.

( 2 ) WE shall now set out the background in which the litigation was launched.

( 3 ) BEREFT of unnecessary details, the facts of the case are that one Amiyabala executed a Will on 6. 8. 72, in favour of the propounder, Pratip Kr. Sen, one of the sons of the testatrix. It is needless to say that Amiyabala passed away a little over 5 years since the execution of the will in English language. She was governed by the Hindu Succession Act and bequeathed all her properties both movable and immovable in an outside jurisdiction of this Court in favour of her relations as detailed in the Will.

( 4 ) IT is conspicuous from the affidavit of assets, filed by the propounder under the Will that it did not exceed the sum of Rs. 62,000/ -. The propounder has disclosed in his petition for probate about the heirs left behind her who would be entitled to the properties on intestacy. None but Nilendu Sen, the son of late Niladri Sen who is the eldest son in the line of issue of the testatrix filed the caveat in the proceedings. The caveator in support of his claim had filed an affidavit which bore allegations about the infirmity of Amiyabala to execute the Will as neither the brain nor the mind of Amiyabala worked together. The recitals of the Will, according to the caveator, were far beyond the reach of naturalness. The execution of the Will was made in clouded atmosphere affecting not only its naturalness but also genuineness to the Core.

( 5 ) IT was also pleaded that the Will was procured by the propounder or Dilip Kr. Sen of having recourse to undue influence.

( 6 ) ON the above footings, the learned trial court framed as many as three issues to settle the controversy between the parties. The learned trial court on a careful examination of the evidence and conspectus of the documents including the attending circumstances, came to the conclusion about the legitimacy of the Will duly executed and attested, the learned trial court also disbelieved the evidence of the lone witness examined for the objector that Amiyabala had no capacity to execute the Will impugned. In the background of the above findings, the appellant objector has come up in Appeal. THE points for decision in the appeal, therefore, are : 1. Had the deceased testatrix the testamentary capacity for executing her last Will? 2. Was the testatrix under my coercion, undue influence or duress at the time of execution of the Will? 3. Is the appeal maintainable in the eye of law and fact ?decision : before embarking on an enquiry to decide the fate of the appeal that the Will complained against was, if the voluntary execution of the testatrix herself uninfluenced by any extraneous consideration. Before adverting to analyse the factual as well as legal premises of the case, it may be recalled since repeated by the law of precedents that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by section 63 of the Succession Act. Undoubtedly, the onus of proving the Will is on the propounder and in absence of suspicious circumstances, the execution of the Will thereof, the testamentary capacity and the signature or the thumb impression of the testator or testatrix is required by law is sufficient to discharge the onus. Where, therefore, there has suspicious circumstances the onus is on the propounder to explain them to the satisfaction of the Court before it accepts the Will as genuine. Where the caveator alleges undue influence, fraud or coercion, the onus is on him to prove the same. Even where there is no such pleas but the circumstances may raise doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may

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